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Judgment
A.M. Khanwilkar, J.—This petition is presented under Sections 100 to 105 read with Section 78 of the Companies Act, 1956, inter alia, praying for approval of this Court for the proposed reduction of share capital of the petitioner-company as resolved by the board of directors of the company in special resolution passed in extraordinary meeting held for the purpose on November 26, 2008, as permitted by Article 5 of the articles of association of the petitioner-company. The procedure prescribed u/s 101(2) of the Companies Act, 1956, is dispensed with in this matter, in view of the averments made in affidavit-in-support of Company Application No. 1680 of 2008.
The petition is admitted.
It is asserted by the petitioner-company in affidavit-in-support of the company application as well as in this present petition that there is no diminution of liability ; and the reduction is not adverse to its creditors/ public in general. In my opinion, it would be just and proper to call for certification from qualified auditors/chartered accountants empanelled with the Registrar of Companies/Regional Director on the factum as to whether the proposed reduction does or does not involve diminution of liability and is not prejudicial to the interest of the creditors/public in general. Depending on that opinion, appropriate orders can be passed in the present matter. This course would not only subserve the interest of the creditors/public in general, but also facilitate the court in taking an informed decision. In the circumstances, notice is issued to the Government of India through the Regional Director (Western Region) returnable on January 23, 2009. The petitioner shall take steps to serve the said notice well before the next date of hearing on or before January 20, 2009, failing which, the petition to stand dismissed for non-prosecution without further reference to the court.
The Regional Director on receipt of the notice is expected to take such measures as may be required for issuance of certificate in consultation with appropriate authorities and submit that certificate to the Company Registrar well before the next date of hearing and final disposal of the petition. Depending on that report, further orders can be passed in this matter. Therefore, the petitioner is directed to issue 28 clear days notice directly to the Government of India, through the Regional Director, Western Region.
The petition fixed for hearing and final disposal on January 23, 2009.
The registry is directed to follow this procedure in every such matter in future.
The petitioner shall take steps to issue publication at least ten days before the date fixed for final hearing. Notice of hearing of the petition be published each in The Free Press Journal, Mumbai edition in English and Maharashtra Times, Mumbai edition in Marathi, and also publish the same in the Maharashtra Government Gazette.
The petitioner to file in the registry, an affidavit of service as per Rule 30 of the Companies (Court) Rules, 1959.